As we prepare for the coming year, we are encouraging employers to conduct a health screening of their immigration programs and be deliberate regarding planning for the future. Employers should stand ready to pivot in view of what President-elect Joe Biden has promised in his immigration plan to modernize America's immigration system. Given the more restrictive immigration environment that we have been dealing with, questions remain as to what specific policy and regulatory changes we should expect for business immigration, and how quickly these changes would be implemented in the future.

This blog will pinpoint key areas where employers can proactively identify and close compliance gaps, position programs strategically and leverage the benefits of immigration to fulfill a critical skills gap in U.S. workforces.

Review corporate immigration policies and budgets for expenditures

Employers must annually review corporate immigration policy to assess whether the policies still align with their business goals. Immigration and global mobility programs need to also fine-tune business cases for hiring foreign workers against shifting business priorities in times of COVID-19 and any other budgetary constraints that are associated with sponsoring candidates and employees. Here are some pointers and reminders employers must consider when reviewing immigration policies:

  • Have immigration policies been recently benchmarked with those of industry peers? If so, how do they compare and are they competitive? For example, is the company initiating green card sponsorship for new hires immediately or 12 months after hiring, or anywhere in between? Does the company automatically pay for premium processing of work visa petitions, including H-1B change of employer petitions; or is premium processing only authorized when there is a legal need? Does the company pay for dependent visa filings such as extensions and EAD applications?
  • To ease employee concerns for USCIS processing delays, employers should consider allocating a budget for premium processing petitions such as this year's H-1B cap petitions, extensions for work visas and other eligible case types. As reported, a new law also significantly expands the premium processing program to include other employment-based applications (such as dependent H-4 and L-2 EADs) and petitions, although USCIS has not yet announced when it will implement the expansion.
  • Employers are advised to budget accordingly for USCIS' potential new filing fees, pending a lawsuit filed by the American Immigration Lawyers Association and several nonprofits to block the fee increases. On December 28, 2020, the U.S. government filed an unopposed motion for dismissal of its own appeal, which means the USCIS fee rule will remain enjoined as the lawsuit continues. As previously reported, USCIS was set to impose new filing fees on October 2, 2020, with staggering increases for employment-based petitions and applications.
  • Whenever supported by the monthly visa bulletin, employers may want to sponsor their foreign employees (India and China COB) for EB-3 I-140 "downgrade" petitions to speed up green card wait times. The less time that these employees spend in the green card queue, the fewer work visa extensions that their employers would need to pay to maintain the employees' work authorization.

Evaluate your foreign talent pipeline

Companies often leverage the H-1B, L-1, and F-1 OPT/STEM OPT to source foreign workers in the talent ecosystem.

H-1B Specialty Occupation Visa: The H-1B has been a topic of much discussion since the announcement of the "Buy American and Hire American" executive order in 2017 to prioritize American workers' interests. Despite recent successful legal challenges to stop the Departments of Homeland Security and Labor (DHS and DOL) from implementing several interim final rules that would severely restrict the H-1B program, the federal agencies are continuing to finalize the proposed rules below. It is unclear though whether the federal agencies will be able to do so, given President-elect Biden taking office on January 20, 2021.

Due to the transitioning administration, the situation remains fluid and employers must be prepared to address the proposed changes below.

  • DOL has issued a final rule that would significantly increase prevailing wages. If the rule takes effect, increased wage minimums would be imposed as early as July 1, 2021, and accompanied with a multi-year phase-in period. As reported, the prevailing wage interim final rule was set aside by several federal court orders, and since then DOL has reverted to the government wage data available before October 8, 2020. In view of the ongoing litigation and revised final rule, we are encouraging employers to use credible alternate wage surveys. These alternate wage surveys may provide data that is more aligned with compensations in local job markets. Additionally, to increase efficiency, employers should consider using multi-slot labor condition applications (LCA) if they have a genuine need for an LCA to cover multiple employees in a specific occupation and worksite. Looking forward, there is no clear indication from President-elect Biden that his administration will necessarily reject some form of prevailing wage increases. There is a proposal in his immigration plan to "reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages." Strictly enforcing prevailing wages also appears in President-elect Biden's plan for strong unions.
  • DHS has published a final rule that would replace its random, computerized H-1B lottery with a wage-based selection process that gives priority to petitions for higher-paying positions. Under this proposal, H-1B visa numbers would be allocated based on DOL's four-level wage system. In effect, foreign nationals in entry-level positions or those with less experience would have a lower chance of getting selected in the H-1B lottery. It is not yet clear whether the wage-based selection process will be implemented for this year's H-1B cap, although the final rule is scheduled to take effect on March 9, 2021.
  • A proposed rule recently released by DHS to revise the definitions of "United States employer" and "employer-employee relationship" could be highly disruptive to the consultancy business model. DOL also issued corresponding guidance to support DHS' new rule. Under these policy changes, where a consulting firm sends an H-1B employee to work at a client company, both the consulting firm and the client company would be required to file H-1B petitions and LCAs in order to sponsor the H-1B beneficiary. The new rule is scheduled to take effect as early as mid-July 2021, although it may be postponed by the incoming Biden administration and could also be challenged in court.

F-1 Student Visa: Employers that recruit international graduates from U.S. universities and colleges to fill positions requiring niche skill sets may continue to experience a shrinking pool of F-1 applicants on Optional Practical Training (OPT) this year as a result of, among other factors, the ongoing pandemic and less favorable immigration policies toward international students. The OPT allows F-1 students to gain work authorization. Due to consular closures and the unavailability of emergency visa appointments, there are F-1 students who are stuck outside the U.S. waiting to apply for their F-1 visas. Looking into 2022, despite President-elect Biden's support of foreign Ph.D. graduates in the STEM fields for green cards, the more restrictive policies under the Trump administration may have a chilling effect on the pipeline of international students in the U.S. and many may have already pursued options in other less restrictive countries.

L-1 Intracompany Transferee Visa: The L-1 visa is a popular vehicle for multinational companies to transfer their executives/managers and specialized knowledge workers to the U.S. from an overseas office. Having options in immigration is important. Employers should prepare for the declining enrollment of foreign students in U.S. universities and/or potential restrictions to the H-1B or F-1 categories. If not already considered, companies with an overseas presence may want to set up strategically located hubs abroad to recruit and employ foreign nationals, and then transfer them to the U.S. on L-1 visas following their one-plus year employment abroad.

Be prepared for increased government audits and investigations.

Audits and investigations by DHS and DOL are on the rise. We encourage employers to conduct self-audits to identify and close compliance gaps; and have a comprehensive and effective compliance program in place to handle such audits and investigations. Attention should be given to the following areas:

  • USCIS site visits: The agency's Fraud Detection and National Security (FDNS) unit is responsible for conducting site visits to verify the existence of an employer and the information provided by an employer in its immigration petitions and/or STEM training plans. These site visits cover the H-1B, L-1 (specifically L-1A executives/managers) and F-1 visa programs and are normally conducted as surprise visits. Companies should have a clear process for handling site visits. During the COVID-19 period when most employees are working from home, it is especially important to obtain the USCIS officer's contact details so that another visit or phone interview could be rescheduled. Companies must also have a clear process of keeping a written record of all questions asked and answers provided following a site visit. More tips are available here and here.
    • Home office visits: In a recent report, H-1B workers may be contacted at their homes for site visits. This is likely the case if they have their home office listed on the LCA. H-1B workers should be cautious about providing personal information when contacted for a home office visit (see guidance here on verifying the legitimacy of a visit – asking for the government official's name, official ID and phone number). If USCIS can provide advance notice of such a visit, a representative from the company's immigration/HR department should ask to participate by phone or video conference during the visit.
  • I-9 compliance: It is critical for employers to correctly process and maintain I-9s to verify the identity and work authorization of every employee hired. Some of the challenges for I-9 compliance are discussed here; and the mismanagement of an I-9 program resulting in financial penalties cannot be understated. To stay compliant, employers should consider using well-designed I-9 software to automate the employment verification process, report and audit I-9 records, safeguard employee data and scale the I-9 program. As a reminder, DHS continues to allow employers and employees to complete I-9 verification virtually using remote technology during COVID-19. This accommodation is not permitted where employees are physically reporting to a work location. Once normal operations resume, employers will need to physically inspect documents for all employees who onboarded and completed remote verification.
  • Maintenance of public access files (PAFs): Employers that file LCAs for H-1B, H-1B1 and E-3 petitions must maintain PAFs for these cases. These employers should ensure that their PAFs are in excellent shape to prepare for potential audits by DOL and inspection by any members of the public. We also expect an increase in DOL wage and hour investigations concerning LCAs. To better maintain PAFs, we encourage employers to store them electronically on a secured company intranet. These electronic PAFs should be easily accessible and reproducible by the in-house immigration/HR department when there is an audit or public inspection. The documentation that must be included in a PAF is discussed here.

Be aware of proposed limits for B-1 business travelers

While global employees may not be travelling often to the U.S. during COVID-19, now is a good time to review the B-1 visa program in view of several proposals to set new limits and requirements for business travelers. The State Department proposes to restrict permissible business visitor activities and also eliminate the use of B-1 in lieu of H-1B and H-3 classifications. These visa classifications allow business travelers to engage in work and training in the U.S. in specific circumstances. DHS separately proposes a more restrictive use of the B-1/B-2 visa, possibly shortening the period of B visitor admission and extensions of stay in the U.S.

Companies should consider the following when reviewing their business traveler programs:

  • Does the organization have a consistent process for assessing travelers for their proposed business activities that would meet the State Department and U.S. CBP guidelines? Preferably working with an immigration counsel, companies have a system in place where an employee can complete a questionnaire online and provide details about the proposed U.S. activities for a proper assessment.
  • There should be a process in place for tracking the departure of business travelers so that they are not staying in the U.S. frequently beyond the time that they promised to U.S. consular or CBP officers.
  • Organizations should also consider taking advantage of the frequent traveler programs such as Global Entry for their employees. Global Entry membership is available to U.S. citizens and lawful permanent residents, as well as citizens from certain countries such as India, United Kingdom, Singapore, South Korea and Mexico.

Given the aforementioned information, employers should plan accordingly to meet their needs. If you wish to discuss any mobility or immigration related matters, please reach out to me at DavyDay@Fragomen.com, or your Fragomen immigration professional.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.